The High Court has agreed to an early hearing of Ryanair’s challenge over a search of its Dublin headquarters by officials from competition authorities in Ireland and Italy.
The search on March 8th was part of an Italian investigation into allegations the airline is abusing its dominant market position in relation to ticket sales.
Ryanair claims the unannounced search of its Airside offices in Swords near Dublin Airport by some 30 officers of both authorities along with gardaí was conducted with an invalid warrant issued by a District Court judge.
It brought High Court proceedings seeking to quash the warrant along with declarations that the material seized in the search is, either in whole or in part, tainted by illegality, inadmissible and should not have been removed from Ireland.
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The search was carried out on foot of a request from the Italian equivalent of our Competition and Consumer Protection Commission (CCPC), the Autoritá Garante della Concorrenza e del Mercato (AGCM).
The CCPC applied to the District Court for the warrant but Ryanair says the judge who issued it was wrongly not informed about two key Italian rulings that it says supports its position that it is not abusing its dominant market position.
It alleges there has been a breach of its fundamental rights by a failure to tell the District Court judge about relevant information and by acting on a warrant that contained errors.
The Italian investigation, which began last September, arose out of claims from two Italian travel agency associations and a consumer association.
Ryanair, it is alleged, through its online ticket sales system precludes travel agencies from purchasing tickets via its website, where the lowest fares are available, and directs them instead to a global distribution system. This affects competition and amounts to an abuse of its dominant market position, it is claimed.
Ryanair “entirely rejects” those allegations and says it is supported in its position by two decisions of the Court of Appeal of Milan in cases against the airline.
The High Court is first being asked to determine whether Ireland is the proper jurisdiction for the Ryanair case.
On Friday, Martin Hayden SC, for Ryanair, said his client wanted the jurisdiction matter heard as soon as possible but there had been a delay because the CCPC had opposed an application the airline made for the digital audio recording of the court proceedings when the warrant was applied for.
The recording was necessary so that the High Court had all the evidence before it when assessing jurisdiction, he said.
Ryanair believes Ireland is the correct jurisdiction because two AGCM officers who participated in the search were “conducting themselves as authorised officers of the CCPC”. That was not a matter of Italian law but of Irish law, he said.
“If they had rocked up to Airside as Italian officers they would have been trespassers”, he said. To circumvent this fact, they produced “this extraordinary search warrant” to say the Italians were not asking for the search but the CCPC, he said.
If the Irish court permits this to occur, it sets a template for foreign authorities to come in on a “smash and grab” for documents and then leave the jurisdiction consequence free, he said.
Eoin McCullough SC, for the AGCM, said his client needs to progress its investigation but cannot because of what is happening in the Irish courts.
His side was only willing to extend an undertaking not to look at privileged documents which had been seized if the case could be heard next week.
It was their case the Irish court did not have jurisdiction in this matter and any order the Irish court makes does not have any effect as a matter of Italian law.
If Ryanair is unhappy, there is a perfectly straightforward procedure available in the Italian courts which Ryanair is familiar with, he said.
Nessa Cahill SC, for the CCPC, said her client supports the speediness of the investigation. However, it had opposed the release of the District Court recording as these proceedings are held in private (in camera) and it is very unusual for the release of the recording in such circumstances.
Mr Justice Barrett said he would hear the jurisdiction matter next week and hopefully email his ruling to the parties within a couple of days.
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